Sunday, June 16, 2013

Foray Technologies

By PETE BENNETT - Contra Costa Watch EMAILPhone: 510-460-5641Posted: 06/13/2013Reposted to Protect My Sons as in 2004 my truck was an arson target, my truck was ablaze on 680, my truck later targeted by hit and run driver, my Ford Explorer rigged ABS system to flip me while driving north, in 2011 returning from a week of working in Modesto for PG&E someone followed me for 50 miles then tried to flip me, and on July 20th 2011 they blinded me then pushed me into oncoming traffic.

Related: Arson / Arson======================================================================KWAN SOFTWARE ENGINEERING, INC., Plaintiff, v. FORAYTECHNOLOGIES, LLC, Defendant.No. C 12-03762 SIUNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFCALIFORNIA2013 U.S. Dist. LEXIS 14708January 22, 2013, DecidedJanuary 22, 2013, FiledPRIOR HISTORY: Kwan Software Eng'g, Inc. v. ForayTechs., LLC, 2012 U.S. Dist. LEXIS 157194 (N.D. Cal.,Nov. 1, 2012)CORE TERMS: software, digital, workflow,authenticity, authentication, customer, authenticate,guidelines, literally, hash, falsity, Lanham Act, user,preliminary injunction, false advertising, injunction,consumer, algorithm, video, irreparable harm, message,authenticated, literal, purports, false statements,advertisement, technology, authenticating, acquisition,distanceCOUNSEL: [*1] For Kwan Software Engineering, Inc.,a California corporation, doing business as Veripic, Inc.,Plaintiff: Dhaivat H. Shah, LEAD ATTORNEY, DavidIra Tobias Siegel, GRELLAS SHAH LLP, Cupertino,CA; George Grellas, George Grellas & Associates,Cupertino, CA.For Foray Technologies, LLC, Delaware LimitedLiability Company, Defendant: Chip Cox, James StevenGreenan, Greenan, Peffer, Sallander & Lally, LLP, SanRamon, CA.JUDGES: SUSAN ILLSTON, United States DistrictJudge.OPINION BY: SUSAN ILLSTONOPINIONORDER DENYING PLAINTIFF'S MOTION FOR APRELIMINARY INJUNCTION; DENYINGMOTIONS FOR LEAVE TO FILESUPPLEMENTAL EVIDENCEPlaintiff Kwan Software Engineering, Inc., d/b/aVeripic, Inc. ("Veripic") has moved to enjoin defendantForay Technologies LLC ("Foray") from making certainpublic representations that allegedly constitute falseadvertising under § 43(a) of the Lanham Act and underCalifornia law. Foray has filed an opposition, and Veripichas replied. The Court held a hearing on the motion onDecember 17, 2012. Having considered the parties'arguments, the Court hereby DENIES plaintiff's motionfor a preliminary injunction, for the reasons discussedbelow.BACKGROUNDVeripic is a California corporation that provides [*2]software for handling digital evidence to police and firedepartments, as well as to other entities that need to storeand retrieve photos, video, and audio files. FirstAmended Complaint ("FAC") ¶ 1, 7, 9. Veripic andForay are direct competitors in the digitalevidence-related software market, which mainly consistsPage 1of law enforcement agencies. Id. ¶ 9.Veripic's complaint states seven causes of actionagainst Foray: (1) copyright infringement; (2) inducementof breach of contract; (3) contributory and inducedcopyright infringement; (4) violation of the DigitalMillennium Copyright Act; (5) false advertising andunfair competition under the Lanham Act; (6) falseadvertising under California Law; and (7) unfaircompetition under California Law. However, Veripic'sinstant motion only seeks to enjoin Foray's behavior withrespect to allegations of false advertising under § 43(a) ofthe Lanham Act (15 U.S.C. § 1125(a)) and under Cal.Bus. & Prof. Code § 17500, et seq.Veripic produces and sells the "Digital Photo Lab"("DPL") software, which is "a centerpiece of its digitalevidence management suite designed for law enforcementagencies." FAC ¶ 8. The "most popular" feature ofVeripic's [*3] DPL software is the "Calibration Module,"which permits users to measure the real life length ofobjects (in inches or metric units) or distances betweenobjects in a photo using a "simple point and click." Id. ¶10. As a result, users can know the precise distanceswithin photos and accurately print life-size or scaledimages. Id. ¶ 11.Foray produces and sells the Authenticated DigitalAsset Management System ("ADAMS") software to thesame customer base as Veripic targets with its DPLsoftware. 1 Id. ¶ 9. Foray's ADAMS software has an"Image Calibration Utility" that performs substantiallythe same function as Veripic's "Calibration Module" -- toallow users to accurately abstract real-life distance from aphoto. Id. ¶ 15-16. However, until July 2009, Foray'sUtility did so in a more "cumbersome" way than Veripic's"simple point and click" method. Id. Foray's Utilityrequired customers to know the exact real life horizontalor vertical distance in a photo and to engage in a"multi-step process" in order to obtain real lifemeasurements. Id. ¶ 16.1 Although "ADAMS" originally referred to thesoftware at issue in this case, Foray now uses"ADAMS" to cross-brand a suite of relatedproducts, [*4] including ADAMS Property &Evidence, ADAMS Crime Scene Photo/Video,ADAMS Bag & Tag, ADAMS Latent/ACE-V,and ADAMS Video Interview.The ADAMS software employs a "hash function,"which allows the user to validate whether a piece ofdigital evidence has been manipulated or altered betweenthe time it is entered into the ADAMS software systemand a later time when a user wishes to make use of thatpiece of digital evidence. Id. ¶ 32. Veripic's DPLsoftware has technology that allows the user to validatenot only whether digital evidence has been altered since itwas entered in the Veripic software system, but alsowhether the digital evidence has been altered from themoment the picture was originally taken.The gravamen of Veripic's false advertising claim isthat since 2008, Foray has misled the public about certainindustry standards and the capabilities of Foray's ownsoftware, and by implication, the capabilities of Veripic'ssimilar software, insofar as they comply with thosestandards. FAC ¶ 22-39. In particular, it is alleged thatForay falsely represents that its ADAMS software has theability to "authenticate" images consistent with guidelinespropounded by the Scientific Working [*5] Group onImaging Technology ("SWGIT"). Id. ¶ 23-24.Accordingly, Veripic now seeks to enjoin Foray from (1)using the name "Authenticated Digital AssetManagement System" or "ADAMS" or any other namethat states or implies that Foray's software authenticatesdigital assets; (2) stating that Foray's softwareauthenticates digital assets; (3) representing that SWGITguidelines endorse the use of hash functions as the bestway to authenticate digital assets and that Foray'ssoftware complies with SWGIT guidelines; and (4)stating that Foray's software is the only software thatcomplies with the SWGIT "requirement" contained in theworkflow described in SWGIT Section 13. If successfulon this motion, Veripic also requests that Foray post in aprominent place on the landing site of its website that ithas been preliminarily enjoined from making the abovestatements and linking a copy of the Court's ordergranting the motion.LEGAL STANDARD"A plaintiff seeking a preliminary injunction mustestablish that he is likely to succeed on the merits, that heis likely to suffer irreparable harm in the absence ofpreliminary relief, that the balance of equities tips in hisfavor, and that an injunction [*6] is in the publicinterest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S.7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). Apreliminary injunction is an extraordinary remedy neverawarded as of right. Id. at 24 (citing Munaf v. Geren, 553Page 22013 U.S. Dist. LEXIS 14708, *2U.S. 674, 689-690, 128 S. Ct. 2207, 171 L. Ed. 2d 1,(2008)). In each case, courts "must balance the competingclaims of injury and must consider the effect on eachparty of the granting or withholding of the requestedrelief." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. at24 (citing Amoco Production Co. v. Village of Gambell,AK, 480 U.S. 531, 542, 107 S. Ct. 1396, 94 L. Ed. 2d 542(1987)).DISCUSSIONVeripic contends that an injunction is necessary inorder to prevent a loss of prospective customers anddamage to its goodwill. Veripic also contends that Foray'smisrepresentations threaten the effectiveness of criminalinvestigations and prosecutions nationwide, where lawenforcement officials are erroneously relying on evidencemanagement software that is not capable of doing what itpurports to do. Foray responds that Veripic's fears areoverstated because the purchasers are highlysophisticated consumers capable of discerning whetherthe product they purchased is actually capable ofperforming the functions it purports to perform. Moreimportant, [*7] Foray denies that the three "false"statements at issue here are literally false, as required bythe Lanham Act. Therefore, Foray contends that Veripichas no likelihood of success on the merits. It is to thatfirst issue the Court now turns.1. Likelihood of Success on the MeritsTo succeed on a claim of false advertising under theLanham Act, the plaintiff must show that: (1) thedefendant made a false statement either about its own oranother's product; (2) in a commercial advertisement; (3)that deceived or has the tendency to deceive a substantialsegment of its audience; (4) that the deception is material,in that it is likely to influence the purchasing decision; (5)that the defendant caused its false statement to enterinterstate commerce; and (6) plaintiff has been or is likelyto be injured as a result of the false statement, either bydirect diversion of sales from itself to the defendant, orby a lessening of the goodwill associated with plaintiff'sproduct. Newcal Indus., Inc. v. Ikon Office Solutions, 513F.3d 1038, 1052 (9th Cir. 2008).22 The parties agree that false advertising underCalifornia law requires the same showing offalsity as the Lanham Act.To demonstrate [*8] falsity within the meaning ofthe Lanham Act, a plaintiff may show that the statementwas literally false, either on its face or by necessaryimplication, or that the statement was literally true butlikely to mislead or confuse consumers. Southland SodFarms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.1997). To be "literally false" the statement must beunambiguously false. In re Century 21-RE/MAX RealEstate Adver. Claims Litig., 882 F. Supp. 915, 923 (C.D.Cal. 1994).When evaluating statements for literal falsity, thestatements should be analyzed in their full context.Southland Sod Farms,108 F.3d at 1139. Where thestatements were made to sophisticated consumers withunique background knowledge and experience, the courtshould consider that as part of the relevant context. See,e.g.,Core-Vent Corp. v. Nobel Industries, 163 F.3d 605,[published in full-text format at 1998 U.S. App. LEXIS22175] at * 4 (9th Cir. 1998) (unpub.) ("Of course, we donot ignore the context in which these studies werepresented ( . . . to a professional conference and . . . in ascientific journal); Campagnolo S.R.L. v. Full SpeedAhead, Inc., 2010 U.S. Dist. LEXIS 46176, at *18 (W.D.Wash. May 11, 2010) ( to determine literal falsity, "thefirst question [*9] is: what does the person to whom theadvertisement is addressed find to be the message?");Utah Medical Products v. Clinical Innovations, 79 F.Supp. 2d 1290, 1309 (D. Utah 1999) ("While actualconsumer confusion is not necessary to assert a claim ofliteral falsity, the perspective of the relevant consumerpopulation is necessary in determining whether theadvertising could be viewed as false.").Three statements are at the heart of Veripic's falseadvertising claim. Foray contends that Veripic cannotestablish falsity, materiality, and injury for any of thethree statements. As to falsity, Veripic contends only thatthe statements are literally false. Veripic does not presentany evidence that, in the alternative, the statementsmisled, confused, or deceived consumers. All threestatements revolve around the meaning of the term"authenticity" as that term is understood by lawenforcement customers and others in the market fordigital evidence management software.A. Statement OneVeripic alleges that Foray has disseminated thefollowing false statement in advertisements and responsesto requests for proposals: "Foray's ADAMS software isthe only software that complies with the SWGIT [*10]Page 32013 U.S. Dist. LEXIS 14708, *6'requirement' contained in the workflow described inSection 13, Best Practices for Maintaining the Integrityof Digital Images and Digital Video of the SWGITGuidelines." Mot. at 7. Connected with that statement,Foray also advertises "NOTE: While some vendors mayclaim they are ASCLD or SWGIT compliant, no otherdigital evidence management vendor complies with theSWGIT workflow #2 [described in Section 13 of theSWGIT Guidelines]. ONLY the FORAY ADAMSsolution meets this requirement!" Id. at 9. Foray madethese statements to law enforcement agencies in OaklandCounty, Michigan and Seattle, Washington. Kwan Decl.,Exs. A, B.Veripic argues that this statement is literally false intwo ways: (1) the Section 13 SWGIT workflow ("Section13") referenced in Foray's advertisement is not a"requirement," but rather it is "workflow #2" of four"example" workflows listed in that section; (2) the word"only" is literally false because ADAMS is not aloneamong software consistent with this workflow, sinceVeripic's DPL software is also consistent with thisworkflow. Foray contends that this statement is accuratein its context.The "requirement" at issue here is referred to as an"example" in [*11] the SWGIT workflow. Siegel Decl.,Ex 1 at 4. Each "workflow" is simply a list of steps usersmay take in order to achieve some software objective.SWGIT describes these workflows as "best practices"and prefaces that, "[t]he following . . . list of specificworkflow examples . . . is not exhaustive as eachsituation requires tailoring a specific process that shouldbe outlined in an organization's SOPs." Id. Veripiccontends that calling an example a "requirement" isliterally false. Foray argues that its use of "requirement"does not mean that its software is the only way to beconsistent with the SWGIT workflow. Rather, itsADAMS software is one known way to comply withSWGIT. In context, the Court agrees with Foray. TheOxford English Dictionary defines "requirement" as"something wanted or needed." Oxford EnglishDictionary, 3d Ed. Here, Foray states that its use of"requirement" is intended to convey that its software usesa series of steps known to be wanted or needed by theexample workflow -- i.e, consistent with it, as it iswritten. Foray argues that its use of "requirement" doesnot exclude the possibility that others can add or changesteps in the workflow. Its use here [*12] only guaranteesto customers that Foray's software, at a minimum, isconsistent with the example.Veripic also takes issue with Foray's assertion thatonly its ADAMS software complies with workflow #2.Veripic contends that this use of "only" is literally falsebecause Veripic's DPL software also "fits within the sameworkflow." Mot. at 10. However, Veripic undercuts itsargument in the very same sentence, noting that incomplying with the workflow, DPL "also provides otherfeatures to ensure the integrity of digital evidence storedin its stems." Id. Veripic's product cannot be literallyconsistent with the workflow where its product deviatesfrom the steps listed in that workflow in order to "provideother features." Foray contends that it uses "only" tomean that its software is the only one that meets theworkflow's specific series of steps, not its generaloutcome. As Foray points out, the left column ofworkflow #2 describes a series of steps in which copiesof the original image are created, so that processingfunctions can be performed in an outside program, whilemaintaining the original image. See Kwan Decl., Ex. A at13. In other words, the user can make working copies of[*13] digital files and work on them in other imagingsoftware, such as Adobe Photoshop. Veripic specificallyeschewed this process as cumbersome and brags that itsDPL "has methods for enhancing images withoutchanging the actual file, and without creating messyduplicates, allowing you to enhance your evidence butnever compromise it." Witzke Decl., Ex. A. Thus,Veripic's DPL software does not simply have "otherfeatures." Rather, it has an entirely different, perhapsbetter or simpler method for achieving the outcomedescribed in workflow #2, that nonetheless does notliterally comply with it. Moreover, Foray has shown thatit literally complies with the specific set of stepsdescribed in the workflow, regardless of whether otherworkflows can be designed to achieve the same outcome.Therefore, the Court cannot say that Veripic is likely tosucceed on the merits of its Lanham Act claim withrespect to this statement, where it has not made athreshold showing of literal falsity.B. Statement TwoVeripic argues that Foray's statement "that itsADAMS software complied with SWGIT guidelines thatstate that the use of a hash function is the best way toauthenticate digital assets" is also literally [*14] false.According to Veripic, hash functions do not allow a userto authenticate, as SWGIT uses that term, but rather, hashPage 42013 U.S. Dist. LEXIS 14708, *10functions validate integrity. Section 13 of the SWGITguidelines, cited by Foray in support of the abovestatement, is entitled "Best Practices for Maintaining theIntegrity of Digital Images and Digital Video." SiegelDecl., Ex. 1. Veripic says this section has "nothing to dowith authenticating digital assets." Mot. at 10. OnVeripic's reading, SWGIT guidelines draw a bright linedistinction between "integrity" and "authenticity."SWGIT guidelines state, "authenticity differssignificantly from integrity." Siegel Decl., Ex. 1.Accordingly, "[i]ntegrity ensures that the informationpresented is complete and unaltered from the time ofacquisition until its final disposition. For example, theuse of a hash function can verify that a copy of a digitalimage file is identical to the file from which it wascopied, but it cannot demonstrate the veracity of thescene depicted in the image." Id., Ex. 2. Authenticatingsoftware, however, validates whether "a questionedimage or video is an accurate representation of theoriginal data by some defined criteria." Id. In response,[*15] Foray argues that there are various industryunderstandings of "authenticity" and "integrity," and thatintegrity as Veripic defines it, is really a subset ofauthenticity. In other words, there are at least two typesof authenticity: (1) acquisition authenticity (what Veripiccalls "integrity"), which ensures that the file itself has notbeen changed since created or acquired; and (2) subjectmatter authenticity, which ensures that the photo is whatit purports to be, the substance of the photo has not beenaltered, and one can rely on the photo to draw real worldconclusions, such as distance and position.Although Veripic argues that the distinction betweenintegrity and authenticity is inviolate, Foray presentssignificant evidence that the terms are ambiguous,overlapping, and sometimes interchangeable.Notwithstanding their warning that the terms are distinct,SWGIT's guidelines, read in their entirety, use thoseterms loosely and interchangeably. For example, inSection 13, SWGIT states "authentication is the processof substantiating that the content is an accuraterepresentation of what it purports to be." Siegel Decl., Ex.1. Yet in Section 14, SWGIT refers to authenticity, [*16]stating, "[i]n the absence of a witness who can testify tothe origin of a questioned image or video, it may bepossible for an examiner to authenticate such data byidentifying its origin." Id. Ex. 2. In other words, Section14 suggests that authentication requires confirmation ofthe origin of data, which is precisely what Veripic says ispart of integrity validation, not authentication. In fact,how would one know that data is an accuraterepresentation of what it purports to be (Veripic's"authenticity") without necessarily confirming that thedata is complete and unaltered (Veripic's "integrity")since its creation? Veripic's own promotional materialsdefine Foray's ADAMS as "acquisition authentication"software, which "refers to knowing that a photo hasn'tchanged starting from when it enters the computermoving forward." Witzke Decl., ¶ 7, Ex. A, VeriPic FAQ¶ 2 (emphasis in original).Moreover, law enforcement professionals in theindustry use authenticity in a variety of ways, some ofwhich are consistent with what Foray claims its ADAMSsoftware actually does. According to Foray's expert KerriMcClary, "authenticate" frequently refers to the varioussteps taken when capturing, [*17] processing andhandling digital photographs to maintain their"authenticity" in order to provide a foundation in courtthat the digital photograph accurately portrays the scene.3 McClary Decl., ¶ 5. Veripic's rebuttal declaration byRichard McEvoy, Jr., does not actually dispute this. SeeMcEvoy Decl., ¶ 10 ("procedures for authentication ofdigital evidence must encompass the entire lifespan ofthat evidence . . . "). Authenticity in the legal evidentiarycontext encompasses both acquisition and subject matterauthenticity, i.e., a witness may testify that a photoaccurately depicts the then-existing reality, and also byimplication, that the photo file has not been manipulated.3 Veripic's evidentiary objection to the McClarydeclaration, that it was unsigned, isOVERRULED. Foray has properly validated thesignature. See Docket No. 47.The evidence presented by the parties demonstratesthat at best, that term authenticity is ambiguous as used inForay's public statements. The SWGIT definition cited byVeripic states that authentication is used "to discern if aquestioned image or video is an accurate representationof the original data by some defined criteria." SiegelDecl., Ex. 2. [*18] However, SWGIT Guidelinesnowhere define the criteria. Accordingly, Veripic has notshown that there is a clear-cut definition of authenticityfrom which Foray's statements clearly andunambiguously deviate. Customers in the market for"authenticating" software have multiple understandingsof what authenticating software is capable of doing andwhat criteria to use to set authentication expectations.Sellers and industry experts similarly have multiplePage 52013 U.S. Dist. LEXIS 14708, *14understandings. Given this ambiguity, the Court cannotsay that Veripic is likely to succeed on the merits of itsLanham Act claim based on this statement.C. Statement ThreeThe third Foray statement Veripic alleges is literallyfalse is that the "ADAMS software 'authenticates' digitalassets" and that therefore, Foray misleads consumer innaming its software "Authenticated Digital AssetManagement System" (i.e., ADAMS). The view that itssoftware authenticates is "a foundational part of Foray'smarkets and sales of its software." Mot. at 12. In support,Veripic cites the signature block of Foray employeeemails, which describe Foray as offering "imageauthentication solutions." Kwan Decl., Ex. E. Thissignature block, noting that Foray [*19] offers"solutions" plural, actually supports Foray's contentionthat it uses authentication to refer to its suite of productsthat involve not just crime scene photographs, but alsolatent fingerprints, footwear impressions, blood spatter,and other kinds of evidence that its softwareauthenticates, as industry consumers think of that term.Moreover, the Court has already discussed why Veripichas not demonstrated literal falsity by using SWGITguidelines as the standard from which Foray's claims ofauthenticity deviate.Veripic contends that Foray's definition ofauthenticity is also inconsistent with the way the NationalInstitute of Standards and Technology ("NIST") uses thatterm. Foray advertises that, "[o]nly Foray Technologiesuses a SHA-256 secure hash algorithm, which is thecurrent NIST standard (NIST FIPTS 180-2 Secure HashAlgorithm) for authenticating digital evidence." KwanDecl., Ex. A. NIST FIPTS 180-02 has four algorithms,SHA-1, SHA-256, SHA-384, and SHA-512. Id., Ex. D.These algorithms, including SHA-256, "produce acondensed representation" of a computer file called a"message digest." Id. And the message digest for eachcomputer file is unique. Id. Thus, software [*20] candeduce whether a file has been altered by comparingmessage digests at different points in the life of a file.And according to NIST, "[t]hese algorithms enable thedetermination of a message's integrity." Id. Thus, Veripiccontends that nowhere does NIST FIPTS 180-2 state thatthese algorithms have anything to do with authentication.NIST does mention authentication in the very nextsentence, stating that message digests help generate"authentication codes," which are part of confirming"integrity." Kwan Decl, Ex. D. Thus, rather than resolvethe ambiguity, Veripic's reference to NIST onlyexacerbates it. Foray points to evidence from an October2, 2012, press release in which NIST announced thewinner of its five-year competition to find a newcryptographic hash algorithm, where it wrote, "[h]ashalgorithms are use widely for cryptographic applicationsthat ensure the authenticity of digital documents, such asdigital signatures and message authentication codes."Hennings Decl., ¶ 5, Ex. A. Moreover, Veripic'spresident, John Kwan, used a similar understanding ofauthentication in a patent application, stating, "[t]hisinvention relates to methods of data authentication andmore [*21] particularly, but not exclusively, provides asystem and method for creating, attaching, and using[hash functions] of digital data to authenticate the claim."Hennings Decl., ¶ 6, Ex. B.Veripic argues that Foray has for years used NISTand SWGIT as reference points to frame the meaning of"authentication" and it cannot now disclaim that use. Asan example, Veripic points to a presentation by Foray'svice president of program management, David Witzke, tothe International Association for Identification, whereinhe states that SWGIT "provide[s] us with the guidelinesfor the processing of anything digital." Wu Decl., ¶¶ 3-4,Ex. W1. But later in that presentation, consistent withForay's position here, Witzke states, "[u]nder section 13of the SWGIT guidelines we actually get into some of therequirements for tracking and maintaining theauthentication of images." Id. In other words, Foray issuggesting publicly that it understands SWGIT Section13 to address acquisition authenticity.Given the state of the evidence, Foray's use ofauthenticity in its advertising is far from being literallyfalse, understood in context. Veripic relies on a hairsplitting, literal reading of NIST and [*22] SWGITstatements that are themselves inconsistent or ambiguous.Accordingly, Veripic has not offered evidence sufficientto justify an injunction because it has not shown likelysuccess on the merits. Because Veripic is unlikely to beable to show falsity, the Court need not address theparties' additional arguments regarding materiality andinjury, except to say that Veripic's arguments herelikewise appear to be weak. Similarly, the Court need notaddress Foray's argument that Veripic has unclean hands,and that Veripic's authentication argument is actually anundeclared trademark infringement action.Page 62013 U.S. Dist. LEXIS 14708, *182. Irreparable HarmPlaintiffs must also establish a likelihood that theywill suffer irreparable harm absent injunctive relief.Winter v. Natural Resources Defense Council, 555 U.S.7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). Inparticular, plaintiffs must establish that "remediesavailable at law, such as monetary damages, areinadequate to compensate for that injury." Boomerangit,Inc. v. ID Armor, Inc., 2012 U.S. Dist. LEXIS 86382, at*11 (N.D. Cal. June 21, 2012).Veripic's theory of irreparable harm is that it willlose prospective customers and business goodwill. Whilegoodwill and loss of prospective customers [*23] maysometimes support a finding of irreparable harm, seeStuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240F.3d 832, 841 (9th Cir. 2001), Veripic has presented noevidence of actual losses. At best, it presents aspeculative declaration from its company president inwhich he states that six customers have told Veripic thatit was their understanding that "Foray authenticateddigital images in the same manner as Veripic." KwanDecl. ¶ 25. Moreover, Kwan states that he only recentlybecame aware of what Foray was telling customers todeceive them into believing Foray authenticates digitalimages. Id. ¶ 26. And "on information and belief," Kwanbelieves that Veripic has lost several customers to whomForay previously sent an advertisement regarding Foray'salleged compliance with SWGIT Section 13's"requirement." Id. ¶ 27.Veripic's arguments are unavailing for severalreasons. First, as to the urgency of an injunction, Veripicwas made aware, or should have been aware of, Foray'salleged misrepresentations since at least June 1, 2011,when the City of Seattle made available to Veripic theForay request for proposal response that contains theoffending statements. See Kwan Decl., ¶ [*24] 8, Ex. B.Such a delay hardly bespeaks of the urgency typical insuccessful preliminary injunction motions. See OaklandTribune, Inc. v. Chronicle Pub. Co., Inc. 762 F.2d 1374(9th Cir. 1985) ("Plaintiff's long standing delay seeking apreliminary injunction implies a lack of urgency andirreparable harm."). Second, Veripic fails to present anyevidence tending to show that the loss of customers isanything more than speculation or the result of legitimatecompetition. In fact, most customers purchase one ofthese competing software suites only after first reviewingresponses to requests for proposals, companypresentations and extensive research. Thus, any loss ofcustomers may be due to the fact that as betweenADAMS and DPL, customers with knowledge of thedifferences between the products -- whether calledintegrity validation or authentication -- prefer one brandover the other.Veripic has not shown that the harm it imagines ismore than speculative. Accordingly, it has not shownirreparable harm sufficient to justify a preliminaryinjunction.3. Balance of HardshipsVeripic seeks a broad, five part injunction, whereinForay would be enjoined from (1) using the name"Authenticated [*25] Digital Asset ManagementSystem" or "ADAMS" or any other name that states orimplies that Foray's software authenticates digital assets;(2) stating that Foray's software authenticates digitalassets; (3) representing that SWGIT guidelines endorsethe use of hash functions as the best way to authenticatedigital assets and that Foray's software complies withSWGIT guidelines; and (4) stating that Foray's softwareis the only software that complies with the SWGIT"requirement" contained in the workflow described inSWGIT Section 13. Veripic also requests that Foray postin a prominent place on the landing site of its website thatit has been preliminarily enjoined from making the abovestatements and linking a copy of the Court's ordergranting the motion.The scope of the relief sought goes far beyondpreserving the status quo before trial. Veripic effectivelyproposes that Foray discontinue or change the entirebranding of its products. As Foray states, this would endits business during the pendency of this case. Such drasticrelief cannot be supported only by speculation that futurecustomers may not purchase Veripic products.4. Public InterestVeripic has not made a sufficient showing [*26] thatthe injunction it seeks is in the public interest. Veripic iscorrect that there may be crucial legal implications ofhaving law enforcement erroneously rely on software thatdoes not do what it purports to do. Veripic contends thatultimately, evidence may be thrown out of court becauseit was not properly authenticated. Mot. at 21. Thisconcern, however, is overstated and unsupported. Here,sophisticated customers invest significant time andPage 72013 U.S. Dist. LEXIS 14708, *22energy into purchasing this software, and also haveprecise understandings of what they need that software tobe able to do in order to gather, store, and validateevidence in a legal setting. Veripic presents no evidenceto the contrary. Therefore, Veripic has not stated acompelling public interest in an injunction.CONCLUSIONFor the foregoing reasons, Veripic has not shownthat an injunction should issue. Accordingly, the Courthereby DENIES Veripic's motion for a preliminaryinjunction. The Court also DENIES as MOOT Foray'smotion for leave to file a declaration and depositiontestimony and DENIES as untimely Veripic'sadministrative motion for leave to file supplementalevidence. This order resolves Docket Nos. 22, 48 and 52.IT IS SO [*27] ORDERED.Dated: January 22, 2013/s/ Susan IllstonSUSAN ILLSTONUnited States District JudgePage 82013 U.S. Dist. LEXIS 14708, *26